1- TORT - Negligence and DoC

Question 1

What must one prove for negligence?

Answer 1

Duty of Care
Breach
Causation
Remoteness

Question 2

To determine duty of care (after no precedent found), what test is applied?

Answer 2

1. Foreseeability of harm: must have been reasonably foreseeable that D’s lack of care would cause harm 👀
2. Proximity: relationship of sufficient proximity between D & C 👯
3. Fair, Just & Reasonable to impose duty ⚖️

Question 3

What policy considerations are considered when determining what is ‘fair, just and reasonable’ for DoC?

Answer 3

Floodgates
Insurance (more likely to be liable if D is insured or should have been)
Crushing liability
Deterrence
Maintenance of high standards
Defensive practice

Question 4

What is the general position on duty of care for omissions?

Answer 4

No such duty is imposed on failure to act
(But would go through precedent & 3-stage test)

Question 5

What exceptions are there on the general rule for DoC for omissions?

Answer 5

• Statutory duty 🇬🇧
• Contractual duty 📝
• Sufficient control over claimant
• Assume responsibility for claimant
• Defendant creates the risk

Question 6

What precedents are there for DoC for ambulance, fire brigade and police?

Answer 6

• Ambulance: to respond to a 999 call, within a reasonable time
• Fire Brigade: no DoC to attend fire, but if they do, owe duty to not make situation worse than positive act
• Police: NO duty to respond to emergency calls - duty to public to prevent them for reasonably foreseeable injury when arresting

Question 7

What cases cover special relationship?

Answer 7

• Borstal (boat breaking) boys and Home office - supervision 🚣✅
• No care or control between victim of Yorkshire Ripper and police 🔪👮❌
• Health authority discharged mental patient into community w/o supervision & he killed a child. No proximity between authority and patient or victim🤪🔪❌

Question 8

What is the position on public bodies owing a DoC?

Answer 8

May owe duty where principles applicable to private individuals would
Very hard to argue for omissions
Must consider policy considerations

Question 9

What cases cover statutory duty?

Answer 9

• local authority misdiagnosed a child with dyslexia, has assumed responsibility for his education therefore had a DoC📖✅
• Drunk solider fell off a moving lorry, commander owed solider DoC🪖🫡✅
• power to take kids into care is not a duty to do so👶❌